Abstract

Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion. A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace. The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists' well-publicized entry onto the center stage of our nation's ongoing culture war drama. One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions. Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power. Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive. The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.

Keywords: Religious liberty, freedom of religion, pharmacists, right of conscience, morality in the marketplace

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